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Humor and Wit in Supreme Court Opinions:

Can you think of deliberately amusing or witty -- in the sense of trying to get the reader to smile, even if not to guffaw -- passages from Supreme Court opinions? Here's one that I remember, from Justice Stevens' concurrence in Widmar v. Vincent (1980) (paragraph break added):

Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity.

I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time -- one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet -- the First Amendment would not require that the room he reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom.

I take it that Justice Stevens isn't just trying to provide an illustration of a permissible content-based restriction; rather, the surprising outcome of the Mickey Mouse vs. Hamlet comparison, under which Mickey comes out the winner, is meant as a little throwaway element of levity. Again, not occasion for belly laughs, but I think it qualifies as humor.

Please post other such examples to the thread, but please follow these rules:

  1. Please limit yourself to opinions in Supreme Court cases.

  2. Please limit yourself to quotes that are funny or at least amusing; if they're serious, it doesn't matter how eloquent they may be. Sarcasm is a hard case, because it is a form of wit and has some connections to humor; but I'd say that not all sarcasm qualifies, and the point must be to get at least some readers to crack something of a smile.

  3. Please check other comments first, to make sure that you aren't duplicating something that someone else has already posted.

  4. Please include the literal quotes (for instance, from the materials on findlaw), rather than just working from vague memories.

Also, please feel free to let others who might be interested know about this -- I'd like to get as comprehensive a list as possible. Thanks!

Goober (mail):
Campbell v. Acuff (the other 2 Live Crew case), for some reason Findlaw's not providing citations for this but it's in Kennedy's concurrence:

"Just the thought of a rap version of Beethoven's Fifth Symphony or 'Achy, Breaky Heart' is bound to make people smile."

Heavens! Not Mort Sahl, but pretty good for a Justice. Lamentably, it continues:

"If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. And underprotection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create."

Oh well. You knew it couldn't last.
5.4.2005 2:26pm
Sooner Lawyer (mail):
Not sure if dissents count, but Justice Scalia's dissent in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), although making a serious point, was surely meant to crack a smile:


If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf–and if one assumes the correctness of all the other wrong turns the Court has made to get to this point–then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U.S. Const., Art. I, §8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.
5.4.2005 2:32pm
Richard Riley (mail):

Although the language of the statute and the report of the Committee of the Judicial Conference demonstrate that the statute deals generally with the situations both of temporary and more than temporary insanity, one could infer from the reports on the bill by the Committee, by the Judicial Conference itself, and by the committees of both Houses of Congress that the specific commitment under § 4248 was designed only for prisoners whose sentences are about to expire. But this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute. The second sentence of § 4246 clearly makes commitment under § 4248 applicable to persons found mentally incompetent under § 4244 who meet the conditions specified in § 4247.


Greenwood v. United States, 350 U.S. 366, 374 (1956) (Frankfurter, J.)
5.4.2005 2:37pm
jk (mail):
“...today’s opinion resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatma Gandhi, the Cellophane of subjectivity, th’ ol’ ‘shocks-the conscience’ test.” City of Sacramento v. Lewis, 523 U.S. at 861 (Scalia, J., concurring).

“The fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to the imposition of the level of punishment that the defendant receives–whether the statute calls them elements of the crime, sentencing factors, or Mary Jane–must be found by the jury beyond a reasonable doubt.” Ring, 536 U.S. at 610
5.4.2005 2:46pm
Plainsman (mail) (www):
One tends to associate Justice Ginsburg with low-key, sober, if not downright prim judicial opinions.

However, I laughed at this passage from her fine dissent in the Fourth Amendment case challenging the use of drug tests for high school students participating in extracurriculars:

"The School District cites the dangers faced by members of the band, who must “perform extremely precise routines with heavy equipment and instruments in close proximity to other students,” and by Future Farmers of America, who “are required to individually control and restrain animals as large as 1500 pounds.” Brief for Petitioners 43. ...

"Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all."

-- Bd. of Ed. of Indep. Sch. Dist. No. 92 of Pottawotamie County v. Earls (U.S. 2002) (Ginsburg, J., dissenting).
5.4.2005 2:59pm
Johh Fee (mail):
I think that Justice Scalia's dissent in Kyles v. Whitley, 514 U.S. 419, 466-67 (1995), qualifies:


To assert that unhesitant and categorical identification by four witnesses who viewed the killer, close-up and with the sun high in the sky, would not eliminate reasonable doubt if it were based only on facial characteristics, and not on height and build, is quite simply absurd. Facial features are the primary means by which human beings recognize one another. That is why police departments distribute "mug" shots of wanted felons, rather than Ivy-League-type posture pictures; it is why bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking "You admit that you saw only the killer's face?" will be laughed out of the courtroom.
5.4.2005 3:08pm
Gordon:
I thought this was amusing. It is from:
PALAZZOLO v RHODE ISLAND et al.
SUPREME COURT OF THE UNITED STATES
CERTIORARI TO THE SUPREME COURT OF RHODE ISLAND
No. 99—2047. Argued February 26, 2001–Decided June 28, 2001

"Nor is petitioner’s takings claim rendered unripe, as the State Supreme Court held, by his failure to apply for permission to develop the 74-lot subdivision that was the basis for the damages sought in his inverse condemnation suit. It is difficult to see how this concern is relevant to the inquiry at issue here. The Council informed petitioner that he could not fill the wetlands; it follows of necessity that he could not fill and then build 74 single-family dwellings there. Petitioner’s submission of this proposal would not have clarified the extent of development permitted by the wetlands regulations, which is the inquiry required under the Court’s ripeness decisions.
5.4.2005 3:10pm
Patrick McKenzie (mail):
I guess this one might be a matter of taste regarding the sarcasm:

Scalia, in his dissent in Lawrence v Texas:

And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (" 'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life' "): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.

Scalia again:

Facial features are the primary means by which human beings recognize one another. That is why police departments distribute “mug” shots of wanted felons, rather than Ivy-League-type posture pictures; it is why bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking “You admit that you saw only the killer’s face?” will be laughed out of the courtroom.

And Scalia in Chicago v Morales

When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring the respondents, who are challenging the Ordinance, to show that it is invalid in all its applications, they have required the petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law’s application would (in their view) be ambiguous. But that creative role has been usurped from the petitioner, who can defeat the respondents’ facial challenge by conjuring up a single valid application of the law. My contribution would go something like this5: Tony, a member of the Jets criminal street gang, is standing alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the Ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement–not entirely coherent, but evidently intended to be rude–“Gee, Officer Krupke, krup you.” A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it, I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents’ facial challenge to the Ordinance’s vagueness.
5.4.2005 3:14pm
MWL (mail):
This was the only quote from my Con Law casebook that caused me to smile:

Although I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon, I never understood the Constitution to require a State to give such preference. (My dissenting Brother asks me to say that this statement does not necessarily represent his views on the respective merits of Scotch and bourbon.)

Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-349 (1964) (Black, J., dissenting)
5.4.2005 3:20pm
Goober (mail):
I call extra points for every entry that isn't written by Scalia.
5.4.2005 3:21pm
Matt White (mail) (www):
Another Scalia, this time from Morrison v. Olson (the Independent Counsel Case):


As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that "some" Presidential control. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for `good cause.'" Ante, at 696. This is somewhat like referring to shackles as an effective means of locomotion.


That one makes me laugh.
5.4.2005 3:26pm
DJ (mail):
I recently re-read Justice Scalia's plurality opinion Vieth v. Jubelirer, and this characteristically glib statement made me laugh:

"When it has come to determining what areas fall beyond our Article III authority to adjudicate, this Court's practice, from the earliest days of the Republic to the present, has been more reminiscent of Hannibal than of Hamlet."

And, although Justice Ginsburg is (as noted by above) not ordinarily known for her humor, this somewhat famous footnote in her dissent in Muscarello v. United States certainly stands out:

"Popular films and television productions provide corroborative illustrations. In 'The Magnificent Seven,' for example, O’Reilly (played by Charles Bronson) says: 'You think I am brave because I carry a gun; well, your fathers are much braver because they carry responsibility, for you, your brothers, your sisters, and your mothers.' See http://us.imdb.com/M/search_quotes?for=carry. And in the television series 'M*A*S*H,' Hawkeye Pierce (played by Alan Alda) presciently proclaims: 'I will not carry a gun. . . . I’ll carry your books, I’ll carry a torch, I’ll carry a tune, I’ll carry on, carry over, carry forward, Cary Grant, cash and carry, carry me back to Old Virginia, I’ll even "hari-kari" if you show me how, but I will not carry a gun!'"

(For what it's worth, Ginsburg's dissent is perhaps not surprisingly the only Supreme Court decision to mention the great Charles Bronson. Were I on the Court, all of my opinions would quote him.)
5.4.2005 3:33pm
William L. Garrison:
Justice Scalia, concurring in Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993):

As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening thelittle children and school attorneys of Center Moriches Union Free School District. * * * Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Classic.
5.4.2005 3:42pm
JamesHat (mail) (www):
justice rehnquest in barnes v. glenn theatre (re nude dancing),

"It is without cavil that the public indecency statute is ``narrowly tailored;'' Indiana's requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state's purpose."

guffaw.
5.4.2005 3:44pm
JamesHat (mail) (www):
umm, it may not be evident from the above, but i *do* know how to spell "Rehnquist"

:-(
5.4.2005 3:45pm
Arthur (mail):
A slight rule bend to quote Scalia when he was on the DC Circuit: "This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that 'No man should see how laws or sausages are made.' " Community Nutrition Institute v. Block, 749 F.2d 50, 51
(D.C. Cir. 1984)
5.4.2005 3:53pm
Dilan Esper (mail) (www):
Justice White, dissenting in Barnes v. Glen Theatre, and quoting a Second Circuit opinion discussing strip bars:

"[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who . . . wants some 'entertainment' with his beer or shot of rye."

Rehnquist, in Ornelas v. United States, discussing the suspicion aroused by a car with out of state license plates in Milwaukee in the winter:

"And while the city's salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December."

Justice Blackmun, using the oldest corny maritime metaphor in the book, in his opinion in East River Steamship v. Transamerica Deleval:

"Then, charting a course between products liability and contract law, we must determine whether injury to a product itself is the kind of harm that should be protected by products liability or left entirely to the law of contracts."

A famous one, Justice Stewart concurring in Jacobellis v. Ohio, defining hard-core pornography:

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."
5.4.2005 4:05pm
Doug B. (mail) (www):
More from Nino, this time from a footnote in (the repeatedly comical) Blakely v. Washington, 124 S. Ct. 2531, 2542 n.12 (2004):


To be sure, Justice Breyer and the other dissenters would forbid those increases of sentence that violate the constitutional principle that tail shall not wag dog. The source of this principle is entirely unclear. Its precise effect, if precise effect it has, is presumably to require that the ratio of sentencing-factor add-on to basic criminal sentence be no greater than the ratio of caudal vertebrae to body in the breed of canine with the longest tail. Or perhaps no greater than the average such ratio for all breeds. Or perhaps the median. Regrettably, Apprendi has prevented full development of this line of jurisprudence.
5.4.2005 4:08pm
Edward Sherwin:
Justice Black, dissenting from the denial of certiorari in Bertman v. J. A. Kirsch Co., 377 U.S. 995 (1964):

I am aware of the argument that an able, alert, everdiligent lawyer could have, had he tried hard enough, discovered that the Government had appealed - even in the closing hours of the sixtieth day. I do not doubt that had Bertman's counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk's office to see whether the Government would file a notice of appeal. But Bertman's counsel (so far as the record shows) is not Superman, nor should the law expect him to be.
5.4.2005 4:09pm
DaveS:
Perhaps a little too obvious, but how about the entire opening of Flood v. Kuhn, including the famous list of Blackmun's favorite ballplayers?

"Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, [407 U.S. 258, 263] Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. 3 The list seems endless."
5.4.2005 4:17pm
Adam (mail):
Justice Scalia (sigh) concurring in Ring v. Arizona, 536 U.S. 584, 613 (2002):

"There is really no way in which JUSTICE BREYER can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, JUSTICE BREYER is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land."

This is perhaps more bizarre than funny, but still.
5.4.2005 4:50pm
Justin (mail):
The battle of the string citations can have no winner."

Smith v. Wade, 461 U.S. 30, 93 (O'Connor, J., concurring).

"I give up. Now I realize fully what Mark Twain meant when he said, "The more you explain it, the more I don't understand it." SEC v. Chenery Corp., 332 U.S. 194 (Jackson, J., dissenting).

"Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges." United States v. Ballard, 322 U.S. 78, 94 (1944)(Jackson, J., dissenting).
5.4.2005 4:52pm
Marv (mail):
"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind...Three generations of imbeciles are enough."

--Oliver Wendell Holmes, Buck v. Bell, 274 U.S. 200, 207 (1927)
5.4.2005 5:06pm
David Schraub (mail) (www):
I do adore the PGA Tour v. Martin quote put above, but I think the start of the next paragraph should be added to it for an appropriate denouement:

"If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," U. S. Const., Art. I, §8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf.

Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question."

Bending the rules on the double post, but I really think it adds to it.
5.4.2005 5:11pm
Addison DeWitt:
Continuing the Justice Scalia theme, I have to laugh everytime I read this part of his concurrance from Cruzan. Maybe that's just from the mental image that it conjures up of the parties forgetting about the Supreme Court and pleading their case to random people they call up on the phone. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 293 (1990)(J. Scalia, Concurring)

"While I agree with the Court's analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide -- including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory;"
5.4.2005 5:45pm
MJ (mail):
Justice Scalia:

"Respondents would have us revert in this case to the understanding of private causes of action that held sway 40 years ago when Title VI was enacted...Having sworn off the habit of venturing beyond Congress’s intent, we will not accept respondents’ invitation to have one last drink." ALEXANDER V. SANDOVAL (99-1908) 532 U.S. 275 (2001)
5.4.2005 5:46pm
Dave Hardy (mail) (www):
My nomination is Reynolds v US, 98 U.S. 145 (1878), the polygamy case:

" John W. Snell, also a juror, was asked by the district attorney on voire dire: Q. 'Are you living in polygamy?' A. 'I decline to answer that question.'-Q. 'On what ground?' A. 'It might criminate myself; but I am only a fornicator.' Whereupon Snell was challenged by the United States for cause, which challenge was sustained, and the defendant excepted."
5.4.2005 5:54pm
Me (mail):
I don't know if this qualifies with your formal humor/sarcasm distinction, but it made me crack a smile when I read it.

Justice Scalia in MCI Telecommunications v. AT&T:


"'Modify,' in our view, connotes moderate change. It might be good English to say that the French Revolution "modified" the status of the French nobility - but only because there is a figure of speech called understatement and a literary device known as sarcasm. And it might be unsurprising to discover a 1972 White House press release saying that 'the Administration is modifying its position with regard to prosecution of the war in Vietnam' - but only because press agents tend to impart what is nowadays called 'spin.'"

And Scalia's resort to the use of "dueling dictionaries" does not usually get such a reaction from me.
5.4.2005 6:04pm
Chart (mail):
Scalia, concurring in Barnes v. Glen Theaters:

“The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd.”
5.4.2005 6:06pm
Calvin Coolidge:
This may bend the rules, as I don't think this was intended as humor, but I think it's darn funny. It's from Justice O'Connor in City of Erie v. Pap's A. M., a nude dancing case. This portion explains that the Erie city council did not need to conduct a formal study to determine that strip joints caused harmful secondary effects -- they could look to studies from other parts of the country, or they could look to, um, personal knowledge:


"The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had first-hand knowledge of what took place at and around nude dancing establishments in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects."

529 U.S. 277, 297-98 (2000).
5.4.2005 6:29pm
PLM (mail):
Justice Jackson was a wonderful source of biting humor. Consider Jordan v. de George, 341 U.S. 223 at 240-42. The court held that a conviction for failing to pay tax on liquor was a crime of "moral turpitude" and thus a basis for deporting an alien. Jackson dissented, arguing the term "moral turpitude" was too vague, stating, in part:

"The Court concludes that fraud is 'a contaminating component in any crime' and imports 'moral turpitude.' The fraud involved here is nonpayment of a tax. The alien possessed and apparently trafficked in liquor without paying the Government its tax. That, of course, is a fraud on the revenues. But those who deplore the traffic regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them. Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree. So far as this offense is concerned with whiskey, it is not particularly un-American, and we see no reason to strain to make the penalty for the same act so much more severe in the case of an alien 'bootlegger' than it is in the case of a native 'moonshiner.' I have never discovered that disregard of the Nation's liquor taxes excluded a citizen from our best society and I see no reason why it should banish an alien from our worst.
But it is said he has cheated the revenues and the total is computed in high figures. If 'moral turpitude' depends on the amount involved, respondent is probably entitled to a place in its higher brackets. Whether by popular test the magnitude of the fraud would be an extenuating or an aggravating circumstance, we do not know. We would suppose the basic morality of a fraud on the revenues would be the same for petty as for great cheats. But we are not aware of any keen sentiment of revulsion against one who is a little niggardly on a customs declaration or who evades a sales tax, a local cigarette tax, or fails to keep his account square with a parking meter. But perhaps what shocks is not the offense so much as a conviction."
5.4.2005 6:29pm
Anonymous:
"Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it." NEA v. Finley, 524 U.S. 569, 595-96, 118 S.Ct. 2168, 2182-83(Scalia, J., concurring).
5.4.2005 6:35pm
Betsy Newmark (mail) (www):
Here's another one that always makes my kids laugh from Vernonia School District v. Acton. Scalia, of course.

School sports are not for the bashful, and privacy expectations are limited. School locker rooms are not noted for the privacy that they afford.
5.4.2005 6:36pm
Michael Loatman:
All but three paragraphs of the Court's lengthy opinion in this case are devoted to the development of a scenario in which the Government appears as the "Big Bad Wolf," and appellee Pacifica as "Little Red Riding Hood." In the Court's scenario the Big Bad Wolf cruelly forbids Little Red Riding Hood to take to her grandmother some of the food that she is carrying in her basket. Only three paragraphs are used to delineate a truer picture of the litigants, wherein it appears that some of the food in the basket was given to Little Red Riding Hood by the Big Bad Wolf himself, and that the Big Bad Wolf had told Little Red Riding Hood in advance that if she accepted his food she would have to abide by his conditions.

FCC v. League of Women Voters, 468 U.S. 364, 402-03 (1984) (Rehnquist, J., dissenting).
5.4.2005 6:46pm
Lance (mail):
I almost fell out of my chair at school when I came across this blurb from Scalia. It still makes me chuckle.

"Our task is to clarify the law -- not to muddy the waters, and not to exact overcompliance by intimidation. The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo."

United States v. Va., 518 U.S. 515, 574 (1996)

I can see the justices playing it now!
5.4.2005 7:09pm
Haha:
Scalia from RAV v. City of St. Paul

"the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words - odious racial epithets, for example - would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or gender - aspersions upon a person's mother, for example - would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponents."
5.4.2005 7:28pm
Matt Kita (mail):
Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 836-37 (1995) (Kennedy, J.).

"The prohibition on funding on behalf of publications that "primarily promot[e] or manifes[t] a particular belie[f] in or about a deity or an ultimate reality," in its ordinary and commonsense meaning, has a vast potential reach. . . . Were the prohibition applied with much vigor at all, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes. And if the regulation covers, as the University says it does, those student journalistic efforts that primarily manifest or promote a belief that there is no deity and no ultimate reality, then under-graduates named Karl Marx, Bertrand Russell, and Jean-Paul Sartre would likewise have some of their major essays excluded from student publications. If any manifestation of beliefs in first principles disqualifies the writing, as seems to be the case, it is indeed difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Plato could contrive perhaps to submit an acceptable essay on making pasta or peanut butter cookies, provided he did not point out their (necessary) imperfections.
5.4.2005 7:42pm
Mark M:
"I take it that Justice Stevens isn't just trying to provide an illustration of a permissible content-based restriction; rather, the surprising outcome of the Mickey Mouse vs. Hamlet comparison, under which Mickey comes out the winner, is meant as a little throwaway element of levity."

I don't think it's just a 'throwaway' joke. I think it's supposed to show how subjective content based restrictions are, and how much depends on the criteria. A school that would pick the Hamlet, would probably have a very different vibe/philosophy of education than the one that picked Mickey Mouse cartoons. That's the whole point of having different kinds of universities to choose from. Mickey Mouse vs. Hamlet is kind of extreme, but that's why it's such a great illustration.
5.4.2005 8:37pm
Charlie Eldred (mail):
Scalia (yawn) in COLLEGE SAVINGS BANK, PETITIONER v. FLORIDA PREPAID POSTSECONDARY EDUCATION
EXPENSE BOARD et al.:

The principal thrust of Justice Breyer’s dissent is an attack upon the very legitimacy of state sovereign immunity itself. In this regard, Justice Breyer and the other dissenters proclaim that they are “not YET ready,” post, at 7 (emphasis added), to adhere to the still-warm precedent of Seminole Tribe and to the 110-year-old decision in Hans that supports it. Accordingly, Justice Breyer reiterates (but only in outline form, thankfully) the now-fashionable revisionist accounts of the Eleventh Amendment set forth in other opinions in a degree of repetitive detail that has despoiled our northern woods.

http://supct.law.cornell.edu/supct/html/98-149.ZO.html
5.4.2005 9:40pm
Paul Gowfer (mail) (www):
Well, possibly the funniest case NAME (at least in the Supreme Court) has to be Lawyer v. Department of Justice, 521 U.S. 567 (1997). Sadly, Nino's dissent therein isn't terribly funny.

On the other hand, I rather like the imagery in his dissent in Dickerson v. United states, 530 U.S. 428 (2000):

"The issue, however, is not whether court rules are “mutable”; they assuredly are. It is not whether, in the light of “various circumstances,” they can be “modifi[ed]”; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy."

Nine-headed Caesar... gotta love it.

And then later:
"Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today’s decision does not pretend that it is–and yet still asserts the right to impose it against the will of the people’s representatives in Congress. "

So we've moved from Caesar to Cleopatra...
5.5.2005 1:22am
mlf (mail):
Rehnquist, in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 539-41.

Again, we run up against the sarcasm line. And here's some fightin' words: Rehnquist's bemusement is much more amusing than Scalia's op-ed-style bluster. I always got a kick out of Rehnquist's expression of frustration with the parties and the lower court, and was disappointed when some humorless editor excised it from my Law &Science text. FN 15, at the end of the first para here, has more content than funniness, so I skip it. Here it is, citations omitted:

We next turn to the invalidation of the fuel cycle rule. But before determining whether the Court of Appeals reached a permissible result, we must determine exactly what result it did reach, and in this case that is no mean feat. Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings. Respondents, on the other hand, labeling petitioner's view of the decision a "straw man," argue to this Court that the court merely held that the record was inadequate to enable the reviewing court to determine whether the agency had fulfilled its statutory obligation. But we unfortunately have not found the parties' characterization of the opinion to be entirely reliable; it appears here, as in Orloff v. Willoughby (1953), that [540] "in this Court the parties changed positions as nimbly as if dancing a quadrille."

After a thorough examination of the opinion itself, we conclude [541] that while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings.
5.5.2005 1:28am
Some Jarhead:
As Justice Stevens wrote in his concurring opinion in Roper v. Simmons:

...but that our understanding of the Constitution does
change from time to time has been settled since John
Marshall breathed life into its text.

I said it then, and I'll say it now; "he's got to be joking... right?"
5.5.2005 2:41am
Trent England (mail) (www):
I chuckled at the foreboding end of Thomas's dissent in Johnson v. California earlier this year:

Petitioner Garrison Johnson challenges not permanent, but temporary, segregation of only a portion of California’s prisons.... Nothing in therecord demonstrates that if Johnson (or any other prisoner) requested to be housed with a person of a different race, it would be denied (though Johnson’s gang affiliation with the Crips might stand in his way). Moreover, Johnson concedes that California’s prisons are racially violent places, and that he lives in fear of being attacked because of his race. Perhaps on remand the CDC’s policy will survive strict scrutiny, but in the event that it does not, Johnson may well have won a Pyrrhic victory.
5.5.2005 11:08am
Joe H.:
With respect to Justice Blackmun's enumeration of his favorite baseball players, perhaps the funniest element is an omission; Lazarus' Closed Chambers recounts that Blackmun "in an infinitesmal script...had written "Mel Ott?" in the margin next to where the Hall of Famer's name should have appeared in the opinion".
5.5.2005 12:16pm
mbsch13:
Another Scalia, and a bit of "inside baseball" at that, but I always thought one of the funniest things in any court opinion was Scalia's parenthetical description of the Court's holding in Maryland v. Craig. In that case, the Court held--over Scalia's dissent--that the Confrontation Clause does not bar the use of closed-circuit testimony in a child sexual abuse case. Scalia later described the case thusly:

The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that "when I was young, I probably let stand some convictions that should have been overturned, and when I was old, I probably set aside some that should have stood; so overall, justice was done." I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (right to abortion does exist), with Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (right to be confronted with witnesses, U.S. Const.Amdt. 6, does not).

County of Riverside v. McLaughlin, 500 U.S. 44, 60-61 (1991) (Scalia, dissenting).
5.5.2005 2:53pm
Michael Dimino:
Scalia in Vieth v. Jubelirer, 541 U.S. 267, 299 (2004):
"While one must agree with Justice BREYER's incredibly abstract starting point that our Constitution sought to create a "basically democratic" form of government, ibid., that is a long and impassable distance away from the conclusion that the Judiciary may assess whether a group (somehow defined) has achieved a level of political power (somehow defined) commensurate with that to which they would be entitled absent unjustified political machinations (whatever that means)."
5.5.2005 4:14pm
Mark Simpson (mail) (www):
Not quite an oldie (decided yesterday), but a goodie:

"The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch 'hoe.' A 'hoe,' of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden’s response. We have taken the liberty of changing 'hoe' to 'ho,' a staple of rap music vernacular as, for example, when Ludacris raps 'You doin’ ho activities with ho tendencies.'"

U.S. v. Murphy, No. 04-2293, slip op. at p. 2 fn. 1 (7th Cir. May 4, 2005)


PS -- What makes it even funnier is that they really didn't change it to "ho," but left it as "hoe."
5.5.2005 5:41pm
Nick Gustafson (mail):
Scalia in Roper v. Simmons two months ago...

"Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car...The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation."

To me it would seem more fair to ask the amish their opinion on the electric chair in this case than the electric car.
5.5.2005 10:03pm
Pam Karlan:
Here is an older example from that Civ Pro I staple, Galloway v. United States, 319 U.S. 372, 385 (1943), about whether a veteran seeking benefits for war-induced insanity should be entitled to get to a jury on the question whether his disability was caused by his service. The question involved whether he was continuously insane from 1918 or so until 1935. There's an eight-year evidentiary gap that the Court discusses. Its statement may be unintentionally funny:

"The only evidence we have concerning this period is the fact that petitioner married his present guardian at some time within it, an act from which in the legal sense no inference of insanity can be drawn."
5.6.2005 8:52pm
Elias Batchelder (mail):
A Blackmun classic decrying the Supreme Court's persistent assault on Environmental Standing:


"I fear the Court's demand for detailed descriptions of future conduct will do little to weed out those who are genuinely harmed from those who are not. More likely, it will resurrect a code-pleading formalism in federal court summary judgment practice, as federal courts, newly doubting their jurisdiction, will demand more and more particularized showings of future harm. Just to survive summary judgment, for example, a property owner claiming a decline in the value of his property from governmental action might have to specify the exact date he intends to sell his property and show that there is a market for the property, lest it be surmised he might not sell again. A nurse turned down for a job on grounds of her race had better be prepared to show on what date she was prepared to start work, that she had arranged daycare for her child, and that she would not have accepted work at another hospital instead. And a Federal Tort Claims Act plaintiff alleging loss of consortium should make sure to furnish this Court with a "description of concrete plans" for her nightly schedule of attempted activities."
5.7.2005 1:54pm
Textualist Law Student:
From Kiryas Joel v. Grumet, 512 U.S. 687, 746 n.4 (1994) (Scalia, J., dissenting) (emphasis added) (criticizing the Court's Establishment Clause-based rejection of New York State's attempt to accommodate a religious minority)

"The Court hints, ante, at 2491, that its fears would have been allayed if the New York Legislature had previously created similar school districts for other minority religions. But had it done so, each of them would have been attacked (and invalidated) for the same reason as this one: because it had no antecedents. I am sure the Court has in mind some way around this chicken-and-egg problem. Perhaps the legislature could name the first four school districts in pectore."
5.7.2005 5:45pm
Brian Frye (mail):
"'Opportunity doesn't always knock ... sometimes it rings.' App. 113 (ETS Payphones promotional brochure). And sometimes it hangs up. So it did for the 10,000 people who invested a total of $300 million in the payphone sale-and-leaseback arrangements touted by respondent under that slogan."

SEC v. Edwards, 540 U.S __ (2004) (O'Connor, J.)
5.8.2005 2:15am
Brian Frye (mail):
In 1793, Chief Justice Jay charged a Supreme Court jury as follows. It's impossible to say for certain that he intended this as a joke, especially as its a secondhand recording, but it certainly has the quality of a wry aside.

"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision."

Georgia v. Brailsford, 3 U.S. 1, 4 (1794)
5.8.2005 2:30am
Go, Dog. Go!:
I always enjoyed this quote by Justice Jackson dissenting in a 1950s Supreme Court case:


In spite of the gelding of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, by the recent revision of the Judicial Code, Act of June 25, 1948, s 36, 62 Stat. 991--992, 26 U.S.C.A. s 1141(a), I still think the Tax Court is a more competent and steady influence toward a systematic body of tax law than our sporadic omnipotence in a field beset with invisible boomerangs.


Arrowsmith v. Commissioner, 344 U.S. 6, 12 (1952) (Jackson, J., dissenting).
5.9.2005 2:13pm